from the probably-best-not-to-celebrate-your-abuse-of-the-process dept

While there are still copyright maximalists out there who insist that copyright can't be used for censorship, it looks like we've got yet another example, and it's a crazy one. Gordon Klingenschmitt, a former Navy chaplain, who is running for the Colorado legislature on what appears to be the extreme "I hate gay people" ticket, has been able to kill off the YouTube account of Right Wing Watch, a group that (as you may have guessed) highlights and mocks extreme comments from "right wing" politicians. Over the last few months, they've been posting a few of Klingenschmitt's (who goes by "Dr. Chaps") wackier statements, including video clips of him making those statements. This is pretty clear fair use, but Klingenschmitt started using YouTube's copyright claim system to take down the videos.

In part, he argues that the videos are infringing (actually, he argues "plagiarism" which is different than copyright infringing, and the videos are actually neither), but he also focuses on the YouTube comments on those videos. Klingenschmitt claimed that the YouTube comments amounted to "death threats" from RWW's followers -- though, they're pretty standard crazy YouTube comments, not serious death threats. Also, since the comments are not made by RWW, but viewers on YouTube, RWW is not liable for them. However, he kept sending takedowns, and eventually YouTube terminated RWW's account, arguing that it was their third strike.

In response to this abuse of YouTube's takedown policy, Klingenschmitt released a press release congratulating himself, saying "David takes down Goliath." Tim Murphy, from Mother Jones, asked Klingenschmitt if he felt he should be held similarly responsible for the YouTube comments on his own videos, and Klingenschmitt said that if the user is alerted to comments and don't take action, they become responsible, which is actually not what the law says.

Either way, this appears to be another case where copyright claims are being used to censor content that someone doesn't like. And, given that it's in the context of a political campaign for office, that's especially concerning. Stifling criticism of a political candidate by abusing the law should be seen as a huge problem. Hopefully YouTube acts quickly to restore RWW's account. Whether you agree with RWW or not, hopefully you can agree that (1) they should be allowed to post fair use video and criticize politicians they disagree with and (2) they should not be held accountable for comments made by YouTube viewers.

from the more-evidence-of-how-it's-unconstitutional dept

In the EFF's lawsuit against the NSA over domestic surveillance, the organization has filed 22 first hand examples of organizations which have directly experienced the chilling effects of the surveillance program, which the EFF reasonably argues shows how the program violates the Constitutional right to freely associate. There are numerous examples of public interest groups discovering that members or community members have curtailed communication, declined membership or used other ways of cutting off contact, as they now fear the threat of potential "guilt by association." Once again, this is the kind of stuff that isn't supposed to happen in America, and it's another reason why the surveillance efforts are so pernicious.

"The plaintiffs, like countless other associations across the country, have suffered real and concrete harm because they have lost the ability to assure their constituents that the fact of their telephone communications between them will be kept confidential from the federal government," EFF Senior Staff Attorney David Greene said. "This has caused constituents to reduce their calling. This is exactly the type of chilling effect on the freedom of association that the First Amendment forbids."

These cases tend to take a while, but the chilling effects are happening now, are very real and are going to continue until the NSA is stopped from its overaggressive surveillance.

from the trademark-slurs dept

Before we dig into this, let's put a couple of facts into evidence. First, Dan Snyder is the owner of the NFL’s Washington Redskins football franchise. Next, as we've covered before, Dan Snyder is an idiot. In addition, the term "Redskin" is a taboo word, commonly considered offensive and detested by Native American groups that have visited with the team to explain to them that they'd prefer not to be disparaged in such a manner. Now, there is a contingent of strange people in this country that insist that fighting back against an NFL team using the Native American version of "darky" is the height of our overly political correct culture and is a waste of time. If you're one of those people, I invite you to voice that opinion in the comments section, not because I think your stupid argument has any merit, but rather because I just want to watch you look silly.

That said, the controversy over the team's name has existed since roughly the time us white folks landed on this land and began helpfully distributing small-pox-ladened blankets to shivering women-folk. So how do we finally get the name changed? As it turns out, the answer just might be trademark law. See, the United States government is a lot of things, and not all of them good, but they sure don't like to officially sanction racial slurs. Couple that with how important trademarks are to NFL teams and we have a light at the end of this racist tunnel. Per trademark lawyer Christine Haight Farley:

Since 1905 federal trademark law has banned the registration of scandalous or immoral marks. In 1947, marks that may disparage, bring into contempt or disrepute persons, institutions, beliefs, or national symbols were also banned. U.S. trademark law is not unique in prohibiting the registration of offensive trademarks. Many other countries' trademark laws contain similar provisions.

So, the starting point is that you can't trademark an offensive term. This, for obvious reasons, essentially amounts to the government not wanting to be in the business of hate-speech. Court cases have been brought in the past asserting the Redskins mark to be invalid on these grounds, with a tribunal in 1999 agreeing that the mark should be cancelled. Unfortunately, that ruling was overturned on federal appeal, which asserted that the lawsuit was brought by old people who should have been offended long before they formally stated so (unjustified delay in bringing the suit) while simultaneously stating that they just weren't quite sure most Native Americans disliked being referred to primarily by their ill-described skin.

However, a younger group of Native Americans has refiled and a ruling is expected fairly soon. If Farley's analysis is correct, there seems to be only one logical way for the court to rule.

The term used by the Washington football team has been demonstrated by overwhelming linguistic and historical evidence to constitute a disparaging epithet insulting to Native Americans. Many Native American organizations, including the National Congress of American Indians, the National Indian Education Association, the Native American Journalists Association, the Native American Rights Fund, the Morning Star Institute, the International Indian Treaty Council, and the National Indian Youth Council, have publicly and vociferously opposed the continued use of the term in trademarks or as the name of sports teams. The director of the Smithsonian National Museum of the American Indian has said he considers that name to be the most offensive name in current use. The trademark office tribunal was satisfied by survey evidence that showed that 37 percent of the Native Americans surveyed found the word the team uses as their name to be offensive.

Now, while the cancellation of the mark wouldn't require the team to change its name, or even stop using the epithet in commerce, it might as well. Trademarks on team names, perhaps most-so in for NFL teams, is where a vast amount of team revenue is achieved. If they lose the mark, it would open the commerce door to all manner of groups to use the name in commerce. That isn't something a team run by Dan Snyder would stand for. In other words, trademark might actually kill off the most offensive team name in sports. As far as I'm concerned, it can't happen soon enough.

from the urls-we-dig-up dept

Nature has devised some convenient ways to protect foods until we're ready to eat them -- bananas have nice yellow peels, grapes come in handy bunches, etc. People have also devised a few interesting packages for food (not just Pringles cans), but there's always some room for improvement. Here are just a few examples of some ways to store food/drinks in interesting ways.

from the troll-this dept

Over the last few years, Next Media Animation has become something of a cult hit for their famed "Taiwanese animation" of various news events. We've written about them a few times, such as when they did a news animation of the outrage over TSA scans and again when they took on SOPA. The folks over there got in touch to let us know that they recently did one on patent trolls which is amusing, in their unique style (though this one is in English, rather than Chinese with English subtitles):

The video discusses Personal Audio's claim that it owns podcasting, as well as the recent Rockstar Consortium patent troll nuclear attack on Android. It also hypes up the EFF's efforts against patent trolls and recommends donating to EFF (as you should).

from the one-of-a-million-things-to-worry-about-when-you're-pushing-$18B-of-'pape dept

Among the stated risks was the concern that its trade marks could suffer genericide and become unenforceable. Specifically, Twitter stated in its filing, "[t]here is a risk that the word 'tweet' could become so commonly used that it becomes synonymous with any short comment posted publicly on the Internet, and if this happens, we could lose protection of the trademark." How great is this risk? This Kat has yet to hear anyone refer to short messages posted anywhere other than Twitter as a Tweet.

Like IPKat, I've yet to hear anyone use the word "tweet" as anything other than in Twitter or bird-related contexts. The future may bring some watering down of the term, but it's highly unlikely that "tweet" will become the next "xerox," "kleenex" or "google."

Google genericide is an interesting case, at least as much a product of the search engine's ubiquitous use as anything else. It's definitely less of a mouthful than telling someone you'll "perform an internet search" or other words to that effect. The IPKat points out that Google's genericide was anticipated by the search giant, which made a few clumsy efforts to head it off.

Google comes to mind as a company that faced such a risk as its popularity skyrocketed. It launched media campaigns reminding consumers that they were "searching the web on Google" or "Googling, but only on the Google platform," and they were never, ever, "googling."

Of some comfort to Google (other than its billions of dollars) is the fact that if someone says they're "googling," they're almost certainly doing it "on the Google platform." Google's market share in search is dominant enough that "googling," while being used in a generic way, is actually not a generic term. Googling happens on Google at least two-thirds of the time. Without a doubt, some people may be "googling" using other platforms, and I'm sure that somewhere, at some time, someone has uttered the completely feckless phrase, "I'll google it on Bing." Presumably this speculative person was promptly subjected to a corrective beating by horrified bystanders, unless said conversation took place within shouting distance of Redmond. (In which case, a beating still occurred, but the speech error being corrected was completely different.)

Is Twitter truly concerned that any truncated internet missive will be genericized as a "tweet" in the near future? I would say it's about 100% not concerned about this eventuality. However, the nature of mandatory financial filings like these (along with 10-Qs, 10-Ks, etc.) is that every potentially negative eventuality, however unlikely, must be conveyed to purchasers in order to stave off hordes of angry shareholders wielding pitchforks and lawyers should the unlikely occur and severely devalue their holdings.

Twitter's major problems are the patent battles it faces. Its own patent policy is groundbreaking in terms of allowing the inventors to retain their rights to their inventions (unlike most companies). The added stipulation that these patents cannot be used offensively sets a standard few companies are likely to follow. The concern about the potential cost of patent battles is in the filing as well, and IBM has already decided to coattail ride Twitter's innovation by slapping it with a frivolous infringement suit. Success paints a big target on your back, as Twitter points out in its filing.

...we are presently involved in a number of intellectual property lawsuits, and as we face increasing competition and gain an increasingly high profile, we expect the number of patent and other intellectual property claims against us to grow…

So, will Twitter become a trademark bully? Probably not. (Although its tendency to aggressively control usage of its API is somewhat concerning…) It has real problems to deal with, and if "tweet" goes generic, it will just be sign that it's thoroughly dominated a market -- not an indication that its brand has been weakened.

from the get-over-it-guys dept

Well, this is disappointing. Canonical, the company behind Ubuntu, apparently has decided to act like a trademark bully. The maker of a fairly popular version of Linux sent a cease-and-desist letter to the website FixUbuntu.com, which is a website run by Micah Lee (who happens to work for EFF), that shows Ubuntu users how to disable a default feature in Ubuntu that Lee reasonably considers to be privacy invading. It's pretty straightforward, but Ubuntu's trademark lawyers are trying to kill it. While the letter is more on the friendly end of the spectrum, it's still problematic. It argues that Lee does not have the right to use the logo:

To keep the balance between the integrity of our trademarks and the ability to to use and promote Ubuntu, we’ve tried to define a reasonable Intellectual Property Policy. You can read the full policy at http://www.canonical.com/intellectual-property-policy. As you can see from our policy, to use the Ubuntu trademarks and and Ubuntu word in a domain name would require approval from Canonical.

Unfortunately, in this instance we cannot give you permission to use Ubuntu trademarks on your website and in your domain name as they may lead to confusion or the misunderstanding that your website is associated with Canonical or Ubuntu.

So, whilst we are very happy for you to write about Ubuntu, we request you to remove Ubuntu word from you domain name and Ubuntu logo from your website. We would highly appreciate if you could confirm you have done so by replying this email to us.

Of course, legally, this is hogwash. As we've been pointing out for years and years, the case law is pretty damn well established around so-called "sucks sites" (sites that criticize or discuss a brand, including using that brand in their own domain) are not, in fact, trademark infringement. In response, Lee and his colleagues at EFF came up with a wonderful disclaimer they've added to the site just to make it extra clear that there will be no confusion:

Disclaimer: In case you are either 1) a complete idiot; or 2) a lawyer; or 3) both, please be aware that this site is not affiliated with or approved by Canonical Limited. This site criticizes Canonical for certain privacy-invading features of Ubuntu and teaches users how to fix them. So, obviously, the site is not approved by Canonical. And our use of the trademarked term Ubuntu is plainly descriptive—it helps the public find this site and understand its message.

How often do you get to put the terms "complete idiot" in a disclaimer?

Of course, as Lee also points out, if Canonical really wants the site to go away, they can make that particular feature opt-in instead of default. But, even if they don't, their cease-and-desist demand is meaningless, because it's not infringement. It's too bad that a company that is an open source leader would also get into trademark bullying, even if it's done so with a smile.

from the there-we-go dept

There's been so much misguided hatred towards successful internet music services lately, with the main targets being the most successful: Spotify and Pandora. Could those services be doing better? Yes, absolutely, but so much of the the hatred seems incredibly misplaced. Here are services that are actually paying artists, and that have built platforms that millions upon millions of people love. Many of the complaints about the "low payout" numbers involve people totally misunderstanding the data as well. But there's also been one elephant in the room which hasn't received as much attention: Spotify and Pandora pay the record labels, since they hold the copyright. Often, a big part of the problem is that the labels then do everything to avoid paying the artists.

In the past, I've disagreed with singer Billy Bragg's view of internet services, but this time around, he's right: in many cases, the real problem (yet again) are the labels and not these services. He's written a detailed Facebook post explaining this position, noting that complaining about Spotify is like "campaigning against the Sony Walkman" when it was first introduced. Going against what music fans want is never a good strategy.

From there, he gets to the real issue: how the labels account for streaming revenue:

The problem with the business model for streaming is that most artists still have contracts from the analog age, when record companies did all the heavy lifting of physical production and distribution, so only paid artists 8%-15% royalties on average.

Those rates, carried over to the digital age, explain why artists are getting such paltry sums from Spotify. If the rates were really so bad, the rights holders - the major record companies - would be complaining. The fact that they're continuing to sign up means they must be making good money.

Here in Sweden - where I'm doing a show tonight in Malmo - artists have identified that the problem lies with the major record labels rather the streaming service and are taking action to get royalty rates that better reflect the costs involved in digital production and distribution. UK artists would be smart to follow suit.

Of course, there have already been lawsuits about similar issues, related to legacy contracts. You hopefully remember Eminem's big lawsuit over whether or not digital sales count as licenses or sales, since "licenses" involve a 50% cut, while "sales" are more like 10 to 15%. As the Guardian article notes, there are some labels that do in fact pay a greater percentage on streaming deals, as they should, but many legacy artists are locked into bad contracts. And, of course, there's always the issue of how well the labels actually handle their accounting, and the way they play games to make sure artists never "recoup," making it difficult to get any royalties.

The internet services definitely can do more to help artists, but much of the blame often seems misplaced, so it's great to see someone like Bragg recognizing that.

from the not-quite-what-you'd-expect dept

When the feds arrested Ross Ulbricht saying that he was the Dread Pirate Roberts who had created and run Silk Road, the dark web e-commerce site for all sorts of illegal products, we noted that there were actually two cases filed against Ulbricht, with the second one involving some really crazy claims of Ulbricht's attempt to hire someone to kill a Silk Road employee. Of course, the "hit man" he hired was actually an undercover agent, leading to a bizarre operation in which the Silk Road employee's death was faked, complete with bloody photos. More details have now come out as the employee, Curtis Clark Green, has released a statement providing some details. Believe it or not, this Silk Road employee is a 47-year-old grandfather whose day job is working "at a non-profit dedicated to helping people with learning disabilities." Not exactly what most people probably expected.

In the statement, he notes that he was basically a customer service person for Silk Road, helping out when there were problems and also keeping an eye out for potential fraud and/or law enforcement activity to report to Ulbricht, whose name and identity he never knew. He insists that he "never used illegal drugs and I never intended to be directly involved in illegal drug deals," but it does appear that he does admit to the basic claims that were in that indictment against Ulbricht: that he "helped" a drug dealer (who turned out to be an undercover agent) by agreeing to receive a large amount of cocaine. That resulted in his arrest, which in turn lead to Ulbricht trying to have him killed, claiming money was stolen. Green insists no money was actually stolen.

Once again, it seems like the real story may be even more fascinating than anything Hollywood could make up.

from the and-they-attack-others? dept

One of the more ridiculous arguments against Glenn Greenwald (and others, but mainly Greenwald) concerning the Snowden NSA revelations is that Greenwald is somehow "biased," rather than an objective reporter. Of course, there's this myth of the objective reporter out there, which in practice tends to not actually do journalism (the search for truth) but stenography (repeating what someone tells you). Too often "objective journalism" means he said/she said journalism, where equal weight is given to all kinds of ideas, no matter how ludicrous. If you're actually searching for truth, then there's no problem calling out something as being wrong when it is, in fact, wrong. But, even more ridiculous is that the claims of "objective media" also whitewash the fact that those media players are clearly extremely biased as well.

Take, for example, the episode of Face the Nation, which aired on Sunday, November 3rd. A major point of discussion? The Snowden NSA revelations. The guests to discuss it? Senator Dianne Feinstein, Rep. Mike Rogers, and former NSA boss Michael Hayden. Basically, those three are the biggest defenders of the NSA outside of current NSA employees. To argue that this isn't a clear "bias" is ridiculous. But at least Greenwald is clear where he stands. CBS and Face the Nation still pretend that they're objective.

That may be just one example, but a new study by the Columbia Journalism Review showed that major media sources were uniformly biased in favor of the government. They scoured the four largest newspapers in the US: the NY Times, USA Today, the LA Times and the Washington Post. They had a list of pro- and anti-surveillance words that they used to determine whether or not the general tone of coverage in these newspapers was to support the NSA or to be critical of it. It won't surprise many around here to find that it was overwhelmingly supportive of the government. The major newspapers apparently aren't that big on speaking truth to power.

USA Today led the pack, using pro-surveillance terms 36 percent more frequently than anti-surveillance terms. The LA Times followed at 24 percent, while The New York Times was at 14.1 percent. Even the Washington Post, where Barton Gellman was the first US journalist to break the news of the NSA’s surveillance, exhibited a net pro-surveillance bias in its coverage of 11.1 percent. Although keyword frequency analysis on its own is not always conclusive, large, consistent discrepancies of the kind observed here strongly suggest a net media bias in favor of the US and UK governments’ pro-surveillance position.

As CJR points out, this finding also suggests that the claim from NSA defenders that all of the hubbub over spying is merely a "media creation" may not be true either. The major media is leaning towards the NSA's side of the debate.

from the thanks-for-the-'help,'-G-men! dept

As we just recently covered, the FBI's enthusiasm for starting investigations far outweighs its interest in ensuring they are justifiable. A site owner who forwarded an email containing a threat to hack his site was misinterpreted by an FBI agent to be a threat against the agency, kicking off (at least) six years of monitoring. Even as evidence failed to pile up, the investigation went continued unabated, ultimately costing the site owners' a chunk of income as donors scattered when news of the investigation became public.

We authorized the FBI to look at one threatening email we received, and only that email, so that the FBI could identify the stalker. However, the FBI ignored our request and violated our trust by unlawfully searching our private emails and turning us into the targets of an intrusive investigation without any just cause—all the while without informing us that they had identified the email stalker as Paula Broadwell, who was having an affair with Mr. Petraeus.

It looks as if the FBI is way too willing to extend itself permissions that haven't been specifically granted. Maybe the investigating agents felt Kelley meant to give the agency carte blanche access to her and her husband's email accounts, but was unable to articulate her desire to have her privacy violated thanks to the stress she was under. Or something.

All of this and yet the FBI didn't feel compelled to apprise Kelley of the outcome of its intrusive investigation. (In the end, charges were dropped.) Rather, it opted to leak her information to the press and misconstrue the contents of certain emails it had obtained without permission, leaving she and her husband to deal with the resulting fallout (rumors of an affair, media campouts in Kelley's yard).

The resulting investigation by the military cleared her (and the general she was linked to by the FBI's perusal of her emails) of any impropriety but the damage was already done. The agency's decision to exceed its authorization has managed to turn another person into an advocate against its excesses.

It appears from the NSA's leaks that the government may be trying to collect everything about everyone and everywhere—including America's closest friends and allies—with or without the knowledge of the White House. Unaccountable individuals given free rein to invade people's privacy—and a government that maintains the tools that permit them to do so—are a prescription for a privacy disaster.

With all the current economic, political, social and diplomatic issues facing the country, it is understandable that many Americans seem relatively unconcerned about intrusions on individual privacy. They shouldn't be. The unauthorized search of my family's emails was triggered when we appealed to law enforcement for protection. But who knows what else might set off governmental invasion of privacy—politics or some other improper motivation might suffice. If this could happen to us, it could happen to you.

Not only does this sort of behavior chill speech and make a mockery of the Fourth Amendment, it also makes the country -- and its citizens -- less safe. If people have to think twice before asking law enforcement or investigative agencies to look into possible criminal activity out of fear of having their own personal information sifted through or subjected to months of intrusive surveillance, they may opt to ignore the problem or take matters into their own hands. Either outcome is undesirable.

The NSA has made many placating statements about how it's limited by its authorizations, rather than its capabilities. These have never been particularly reassuring, and are even less so now, as its investigative counterpart appears more than willing to twist requests for help into invitations to snoop.

from the how-medieval dept

Things are getting really odd in the latest music/internet/Silicon Valley skirmishes. It would appear that the step up in anti-streaming music, anti-silicon valley, anti-Google rhetoric by famous musicians is getting heated.

I also wrote a post that offered a solution. I proposed that if the richer musicians were so concerned for their less well off brethren, and believed that culture and society was about to collapse, then perhaps they should help them out.

Not that that's going to happen anytime soon.

The latest addition to the anti-technology list of musicians is the well-respected T Bone Burnett, who in a Halloween-inspired fit of pique, said in a Hollywood Reporter article titled: T Bone Burnett vs. Silicon Valley: 'We Should Go Up There With Pitchforks and Torches.'

How medieval.

Mr. Burnett has a soundbite for us all -- "Digital sound has dehumanized us." If I think for a moment about the true dehumanization of societies under attack around the world -- Iraq, Syria, Mali to name but a few -- I can only scoff at that statement. It's pure hyperbole.

I saw a tweet from Thom Yorke the other day where he'd taken a snap of a page from a Jaron Lanier book (I'm guessing Who Owns the Future?) where Yorke wrote "I am proudly Luddite if to be so is to criticise the power and destruction of Google etc.. J Lanier again."

Let's take a look at what exactly describes a Luddite -- "a member of any of the bands of English workers who destroyed machinery, esp. in cotton and woolen mills, that they believed was threatening their jobs (1811–16)." And in a finer description -- "The Luddites were 19th-century English textile artisans who protested against newly developed labor-saving machinery from 1811 to 1817." [Link]

And so, if we were to take Thom at his word, the fall of Google would cause him and his supporters to dance in the streets waving their proverbial "pitchforks and torches," while denying those in society who are not musicians the benefits of labor-saving technology that Google and other technology companies bring.

That's about as far away from a credible position in this discussion than I can imagine. The real irony there is that the "labor-saving technologies" of today make it easier, not harder, for musicians to reach an audience. Thom's band Radiohead posted a film, Scotch Mist, to the Google-owned YouTube where it has garnered almost 7.3 million views. Just sayin'.

Very recently Tim Quirk, a musician and a friend who I have known for some time now, gave a speech at the Future of Music Summit (you can link to it here.) At its heart Tim's talk was an impassioned plea for musicians to understand the true value of music, not as in a price-point, but at its emotional level. He notes that you cannot devalue music's worth at that level. He understands that musicians are fighting technology because of their misguided, nostalgic view of the recording industry. There was never a "Golden age" of music. Record deals were not built to empower musicians, they were to benefit the record labels. Most musicians hardly ever made a living from music, only those who rose to the top did. Nothing has changed.

Tim provided an image that shows the reality of a music ecosystem:

From Tim:

You can sketch this dynamic with a simple pyramid showing lots of people spending little or no money at the bottom and fewer people spending lots of money at the top. If you’re a new band, you begin at the bottom of that pyramid, but no matter how popular a given artist gets or how amazing her latest single is, there will always, always, always be more people in the world who don't care than who do.

So the goal for every artist and every song has always been to climb this pyramid, convincing as many people as you can to part with something in exchange for listening. At first, you just want their attention. The next step is to get them to give you some money for the privilege of hearing your song whenever they happen to get the urge and as you keep climbing the pyramid, you find yourself with fewer and fewer listeners but each one who remains is happy to give you more and more money.

It has never been any different than it is now in other words. The only change is a societal shift. Young people have voted with their ears. They want to access music wherever they are, they are willing to pay for it too. If they like your music they'll keep paying, if they don't like it they won't bother to even listen to it. Radio has always been free for music fans. If they heard something they liked they bought it. Today -- same as it ever was. (Before you jump in and say the access to "free" music is killing careers, please remember that radio was always free, 24 hours a day, 7 days a week. Still is. Purchasing decisions are made around it. Online and mobile access to music creates demand if the listener perceives its value.)

Let's take the musician's arguments at face value and tell it like it is: they are demanding that they be singled out as a special interest group that should always be able to make an income from their work. If they hold to that position in the face of how markets actually work, e.g. a superior product at a reasonable price will sell better than an inferior product where demand creates the price points, then they will simply lose face and their audience will move on.

And prices are flexible. Arcade Fire released its new album this week and reportedly sold 140,000 copies. If another band called Arcade Ice was as popular but offered its album at $1 less it doesn't mean it will sell 140,000 copies or more just because it's a dollar less. That's because fans of Arcade Fire and Arcade Ice are not necessarily fans of both bands. Each band therefore reaches the fans that will purchase their respective albums, and each band's income will differ -- not on a price point but on demand.

There's a comment in the Demand Curve article I link to that creates an analogy -- "The higher the price of a Kindle is, the less people want to buy it. If the price for a Kindle is to go up drastically, people will buy substitute goods like normal paperbacks, and the demand for ebooks will fall accordingly."

So underpaid authors should force Amazon to increase the price of the Kindle, right? Oh, wait...

Yelling get off my lawn is not a serious response to a lack of demand.

Dave Allen is the founding member and bass player for Gang of Four ad Shriekback, and is currently Digital Creative Director at North, a Portland-based brand strategy company, where this blog post was first published (along with many other great blog posts).

from the captain-justice dept

Reader Willard Seehorn sends in a fantastic example of both ridiculous government requests in a legal matter, as well as one of the best snarky responses to such an overreach. It starts with a Tennessee state Assistant District Attorney General who, in the midst of a case, asked the court to order the defense counsel to refrain from referring to the prosecution as "the government." You can understand why certainly, seeing as how in the present consciousness, the Americans on the jury might associate "the government" with "the government that is doing all that crap they hate on an ongoing basis." The ADAG made this case explicitly, stating that use of the term was inherently derogatory coming from the defense council, Drew Justice. Well, Justice replied to the court in the most wonderful way imaginable.

Justice noted in his response that the court had no authority to ban the term's use in the courtroom and that doing so would be a first amendment violation. However, should the court disagree, he had some requests:

First, the Defendant no longer wants to be called "the Defendant." This rather archaic term of art obviously has a fairly negative connotation.... At trial, Mr. P. hereby demands to be addressed only by his full name, preceded by the title "Mister." Alternatively, he may be called simply "the Citizen Accused." This latter title sounds more respectable than the criminal "Defendant." The designation "That innocent man" would also be acceptable.

Moreover, defense counsel does not wish to be referred to as a "lawyer," or a "defense attorney." Those terms are substantially more prejudicial than probative. See Tenn. R. Evid. 403. Rather, counsel for the Citizen Accused should be referred to primarily as the "Defender of the Innocent." This title seems particularly appropriate, because every Citizen Accused is presumed innocent. Alternatively, counsel would also accept the designation "Guardian of the Realm." Further, the Citizen Accused humbly requests an appropriate military title for his own representative, to match that of the opposing counsel. Whenever addressed by name, the name "Captain Justice" will be appropriate.

It appears the snark is strong with Captain Justice. Perhaps some will say that such an obviously sarcastic and ridiculous response is unbecoming of an officer of the court. To hell with those people. How else is a sane person supposed to respond to an equally ridiculous request from the prosecutor? Not wanting to be referred to as "the government" when you are "the government" is silly. Captain Justice's sign off sums the request up nicely.

WHEREFORE, Captain Justice, Guardian of the Realm and Leader of the Resistance, primarily asks that the Court deny the State’s motion, as lacking legal basis. Alternatively, the Citizen Accused moves for an order in limine modifying the speech code as aforementioned, and requiring any other euphemisms and feel-good terms as the Court finds appropriate.

Hopefully the court will act sanely and not try to muzzle an attorney over such a specious claim. On the other hand, reading about the ongoing adventures of Captain Justice would be rather entertaining.

from the shameful-that-this-question-is-asked dept

It's horrifying enough that this question needs to be asked, but Rep. Alan Grayson, who has been one of the most vocal members of Congress in calling out the NSA's bad behavior has sent a letter to Attorney General Eric Holder, seeking assurance that if US citizen Glenn Greenwald were to come back into the US that he could do so without being arrested. Grayson notes that a variety of prominent people, both within and outside the government (but who have influence on the government) have called for Greenwald to be arrested and prosecuted.

Mr. Greenwald, a United States citizen currently living in Brazil, has been publicly attacked by
Members of Congress such as Representative Peter King, who on multiple occasions has called
for his arrest merely because of his reporting as a journalist on the NSA. The Chairs of the
Senate and House Intelligence Committees, Senator Dianne Feinstein and Representative Mike
Rogers, have appeared to echo this threat, as have prominent foreign-policy commentators such
as Alan Dershowitz and Marc Thiessen.

He also highlights the infamous UK detention of Greenwald's partner, David Miranda. And then asks the basic question of whether or not the US government will agree that Greenwald can enter his own country without arrest for the crime of "journalism the government doesn't like."

I regard this as regrettable, because: (1) the commission of journalism is not a crime; (2) on the
contrary, it is protected explicitly under the First Amendment; and (3) Mr. Greenwald's reports
regarding these subjects have, in fact, informed me, other Members of Congress, and the general
public of serious, pervasive violations of law and constitutional rights committed by agents of
the government.

Bearing in mind that Mr. Greenwald is a citizen of the United States, please let me know: (1)
whether the Department of Justice intends to bring charges against Mr. Greenwald, and (2)
should Mr. Greenwald seek to enter the United States, whether the Department of Justice, the
Department of Homeland Security, or any other office of the federal government intends to
detain, question, arrest, or prosecute Mr. Greenwald, or to monitor or interfere in any way with
his entry into or movement within the United States.

It's a sad and shameful comment on the state of the US government today that this question needs to be asked, no matter what the eventual answer is. We've strayed very very far from the ideals that this country is supposed to embrace.

A handful of agency employees who gave their login details to Snowden were identified, questioned and removed from their assignments, said a source close to several U.S. government investigations into the damage caused by the leaks.

Snowden may have persuaded between 20 and 25 fellow workers at the NSA regional operations center in Hawaii to give him their logins and passwords by telling them they were needed for him to do his job as a computer systems administrator, a second source said.

What fascinates me about this is the idea that if you were working for the NSA, wouldn't you know to never give out your password to anyone, ever? It just seems like basic common sense (also: if you were one of those 20 to 25 people, I'd imagine that as soon as Snowden's name came out, you were sweating bullets). You'd think that NSA employees wouldn't do that sort of thing.

And, once again, what this brings us back around to is the simple fact that NSA employees are humans and sometimes they do the wrong thing. That is why the surveillance program is so worrisome. Keith Alexander and others can insist that there were only a small number of abuses, but all the data actually showed is that the NSA only caught a small number of abuses. It's quite likely that many more have happened, and continue to happen. The fact that it's apparently not that difficult to get NSA employees to cough up their login info shows that for all the talk of careful review, audits, limits and security -- humans remain a very weak link, and there are all sorts of ways to get at information even if the NSA believes it's locked down and carefully monitored.

The C.I.A. is paying AT&T more than $10 million a year to assist with overseas counterterrorism investigations by exploiting the company's vast database of phone records, which includes Americans' international calls, according to government officials.

This is all purely voluntary ($10mil of greased palms/wheels notwithstanding), hence the lack of court orders or subpoenas. Oddly enough, this voluntary system actually protects the privacy of Americans much better than the "legal" Section 215 collections.

The C.I.A. supplies phone numbers of overseas terrorism suspects, and AT&T searches its database and provides records of calls that may help identify foreign associates, the officials said…

Because the C.I.A. is prohibited from spying on the domestic activities of Americans, the agency imposes privacy safeguards on the program, said the officials, speaking on the condition of anonymity because it is classified. Most of the call logs provided by AT&T involve foreign-to-foreign calls, but when the company produces records of international calls with one end in the United States, it does not disclose the identity of the Americans and “masks” several digits of their phone numbers, the officials said.

Of course, these "masked" records can be very simply unmasked by "tipping" them to other agencies, like the FBI, which then acquires a subpoena/court order to "unmask" the records. This just goes to show that these agencies can cooperate, as long as its in the interest of furthering domestic surveillance.

Ultimately though, this news isn't surprising. Phone companies have been collecting government paychecks in exchange for data for a very long time. True, the telcos don't want to appear as though they're selling Americans' data for cash, but that's exactly what's happening. The CIA's primary focus is foreign surveillance and, thanks to AT&T, there's some minimization in place to keep the agency focused on its purview.

More interesting, however, is how this news affects General Alexander's "generous" offer to store data at a "neutral site" in order to alleviate privacy concerns. As was noted back when he made this offer, American telcos are hardly "neutral sites" given their history of swiftly coughing up anything requested with a minimum of pushback.

So, AT&T (and Verizon, etc.) are not "neutral" in any true sense of the word, but at least storing the data there would put the NSA in the position of having to bring its selectors to a third party before accessing stored records, rather than just having them conveniently available (and exploitable) in its own storage for an indefinite period of time. This would trim down the "accidental" abuse that has been displayed by the agency in the past.

More recently, ODNI lawyer Robert Litt (along with the FBI's general counsel) suggested storing data with the originators would lead to less privacy. Given what we know about the CIA's paid data plans, he might be correct, even if his motives for making that claim were completely disingenuous.

It would introduce extra steps, but it appears as though there would be a way to "tip" domestic data to the NSA by simply using the process it uses with the FBI. Restrictions on both the NSA and CIA are meant to minimize the amount of unrelated domestic metadata they have access to. The CIA's restrictions are harsher than the NSA's, but the CIA can still grab and let the NSA wrangle the paperwork needed to unmask numbers. Or vice versa. The NSA can access its on-site metadata stores (with unmasked numbers) and tip domestic call data back to the CIA.

Both of these scenarios are unlikely, but storing the data at AT&T seems to offer very minimal privacy advantages over storing it in the NSA's data centers. At best, this creates some mild speed bumps for the agency to deal with in exchange for a small amount of "peace of mind" privacy-wise. Most telcos have seemed even less interested protecting Americans' privacy than the inquiring agencies themselves. As you'll recall, AT&T went out of its way to perform phone record queries for the FBI for agents armed with nothing more legally binding than a Post-It note.

The other thing to note is that this is another bit of evidence that undercuts the telcos' repeated assurance that they "value their customers' privacy." This sentence is usually followed directly by defensive wording about "complying" with "applicable laws" -- which actually means "complying with intelligence agencies." There's very little true concern on display and little to no evidence AT&T (and Verizon) have ever made any serious attempt to push back on government requests.

from the fair's-fair dept

Despite the growing evidence that corporate sovereignty clauses in international treaties pose considerable risks to nations that sign them, such "investor-state dispute settlement" (ISDS) mechanisms are present in both TPP and TAFTA/TTIP -- at least as far as we know: it's hard to be sure given the obsessive secrecy surrounding them.

One would assume that no nation state would have the audacity to file such a [ISDS] claim against a post-apartheid country that has been widely held up as a model for the world. That, however, didn't stop European firms from filing claims under their bilateral investment treaties. Worse, they went right at the core of South Africa's post-apartheid transformation plan.

The reason the country was taken to these private tribunals was an attempt to shoot down South Africa's policy to seek greater equality in its lucrative mining sector. South Africa had required that these companies be partly owned by "historically disadvantaged persons".

Allowing external investors to dictate its social policies was unacceptable, and South Africa decided to review its other investment agreements to see if there were dangers there too. The problem turned out to be systemic:

Bilateral investment treaties, the review found, "pose risks and limitations on the ability of the government to pursue its constitutional-based transformation agenda".

Since this review South Africa has further concluded that "bilateral investment treaties were now outdated and posed growing risks to policymaking in the public interest". On that basis, the government has recently moved to terminate many of its bilateral investment treaties.

The dogma is that without such bilateral treaties and their guarantees of corporate sovereignty, external investors would be reluctant to invest in a country. But that turns out not to be true:

South Africa actually receives far more capital inflows from nations with which it does not have bilateral investment treaties than from nations with which it has a treaty.
Therefore, renegotiating them should not cause capital flight.

Freed from the necessity to accept whatever terms other countries might seek to impose on it, South Africa is now able to renegotiate bilateral agreements that are fair and that preserve its right to pass laws as it sees fit, unconstrained by legal threats from foreign investors. The Independent Online article points out:

South Africa's efforts should not be seen in isolation. India is also undergoing a national review of its bilateral investment treaties. A group of 12 Latin American nations has recently convened to rethink the benefits of bilateral investment treaties, and the subject is under discussion at the [African Union].

Brazil, a country that did its homework ahead of time and does not negotiate bilateral investment treaties, is putting forth an alternative model for negotiating treaties that may serve as a template for others.

Over the next several years, we will thus see an increasing number of nation states withdrawing from their investment treaties and offering more balanced alternatives.

If that proves to be the case, it could be that those countries signing up for one-sided and inequitable ISDS clauses in TPP and TAFTA/TTIP will come to regret not choosing to preserve their sovereignty as South Africa has done.